No.

18-609

IN THE

___________

JOSEPH DAVID ROBERTSON,

PETITIONER,
V.

UNITED STATES,
RESPONDENT.
___________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
__________
BRIEF FOR THE CATO INSTITUTE
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
__________
Ilya Shapiro
Counsel of Record
Trevor Burrus
Michael Finch
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
tburrus@cato.org
December 6, 2018 mfinch@cato.org
 i

QUESTIONS PRESENTED

1. Does the Clean Water Act apply to non-navigable

waters on private land that do not abut interstate
waters?
2. Should lower courts consider dissenting opinions
when using the reasoning-based test to craft a
rule from split opinions?
 ii

TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF THE AMICUS CURIAE .................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT........................................................... 1
ARGUMENT ................................................................ 4
I. THE CLEAN WATER ACT DOES NOT APPLY
TO NON-NAVIGABLE WATERS THAT DO NOT
ABUT INTERSTATE WATERS ............................ 4
A. The Commerce Clause Does Not Permit the
CWA to Reach Private Intrastate Waters ......... 4
B. CWA Jurisdiction Is Limited by the Textual
Requirements of “Navigable Waters” and
“Preserving the Rights of the States” ................ 6
C. The Nexus Test Is an Exception, Not a General
Rule, for CWA Jurisdiction ................................ 8
II. DIVERGENT TREATMENT OF RAPANOS
SHOWS WHY THIS COURT MUST CLARIFY
THAT, WHEN APPLYING PRECEDENT
WHERE THERE IS NO MAJORITY OPINION,
COURTS SHOULD CONSIDER ONLY
PLURALITY AND CONCURRING OPINIONS . 10
CONCLUSION .......................................................... 13
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989) .................................................. 7
Ex parte Boyer, 109 U.S. 629 (1884) ........................ 6-7
Gonzales v. Raich, 125 S. Ct. 2195 (2005) ............... 4-5
Gregg v. Georgia, 428 U.S. 153 (1976) ...................... 10
Marks v. United States, 430 U.S. 188 (1977) .. 3, 10, 11
Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,
633 F.3d 278 (4th Cir. 2011). ................................. 11
Rancho Viejo LLC v. Norton,
334 F.3d 1158 (D.C. Cir. 2003) ................................ 5
Rapanos v. United States,
547 U.S. 715 (2006) ........................................ passim
Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) .......................................... 6, 7, 9
The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871) .. 6
United States v. Bailey,
571 F.3d 791 (8th Cir. 2009) .................................. 11
United States v. Cundiff,
555 F.3d 200 (6th Cir. 2009) .................................. 11
United States v. Donovan,
661 F.3d 174 (3d Cir. 2011).................................... 11
United States v. Gerke Excavating, Inc.,
464 F.3d 723 (7th Cir. 2006) .................................. 11
United States v. Johnson,
467 F.3d 56 (1st Cir. 2006) .................................... 11
 iv

United States v. Lopez, 514 U.S. 549 (1995) ............... 4

United States v. Lucas,
516 F.3d 316 (5th Cir. 2008) ............................. 11-12
United States v. Morrison, 529 U.S. 598 (2000) ......... 4
United States v. Riverside Bayview Homes, Inc.,
474, U.S. 121 (1985) ................................................. 8
United States v. Robertson,
875 F.3d 1281 (9th Cir. 2017) .................. 2, 3, 11, 12
United States v. Robinson,
505 F.3d 1208 (11th Cir. 2007) .............................. 11

Statutes
33 U.S.C. § 1344(a) ...................................................... 1
33 U.S.C. § 1362(7) ...................................................... 1
 1

INTEREST OF THE AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy
research foundation dedicated to advancing the prin-
ciples of individual liberty, free markets, and limited
government. Cato’s Robert A. Levy Center for Consti-
tutional Studies was established to restore the princi-
ples of constitutional government that are the founda-
tion of liberty. To these ends, Cato conducts confer-
ences and publishes books, studies, and the annual
Cato Supreme Court Review. This case concerns Cato
because individual liberty is best preserved by consti-
tutionally constrained administrative agencies, con-
sistent with the boundaries of the Commerce Clause.
INTRODUCTION AND
SUMMARY OF ARGUMENT
The Clean Water Act (“CWA”) expressly authorizes
federal control over “navigable waters.” 33 U.S.C. §
1344(a). It defines “navigable waters” as the “waters of
the United States,” 33 U.S.C § 1362(7). Nevertheless,
the government argues here that the CWA extends to
waters that are neither navigable, nor interstate, nor
even abutting interstate waters.
The CWA is bounded both by its own text and the
constitutional power to regulate interstate commerce.
The CWA cannot confer more power than the Com-
merce Clause grants, and by its own language the act
purports to “recognize, preserve, and protect the pri-
mary responsibility and rights of the States to prevent,
reduce, and eliminate pollution, [and] to plan the

1 Rule 37 statement: All parties received timely notice of in-

tent to file this brief and consented to its filing. No counsel for any
party authored any part of this brief and no person or entity other
than amicus funded its preparation or submission.
 2

development and use (including restoration, preserva-

tion, and enhancement) of land and water resources.”
Rapanos v. United States, 547 U.S. 715, 737 (2006).
While the Rapanos Court acknowledged that the CWA
uses “navigable” as a defined term, which includes
“waters of the United States,” it also recognized that
the term “navigable” was not devoid of meaning and
had restrictive power. Id. at 731. If “waters of the
United States” means anything, it must mean that
there are some waters too removed from navigable,
commercial waters to fall under the CWA’s control.
Mr. Robertson’s ponds, for example, are not “wa-
ters of the United States” in sense of those words. Rob-
ertson constructed his ponds on private land and, in
the process, discharged “dredged and fill material into
the surrounding wetlands and an adjacent tributary,
which flows to Cataract Creek. Cataract Creek is a
tributary of the Boulder River, which in turn is a trib-
utary of the Jefferson River––a traditionally navigable
water of the United States.” United States v. Robert-
son, 875 F.3d 1281, 1286 (9th Cir. 2017). Mr. Robert-
son’s ponds are four times removed from any navigable
interstate water—and they do not abut waters that are
navigable or interstate. His ponds are thus not subject
to the CWA’s jurisdiction and permit requirement.
The government reads the definition of “waters of
the United States” contrary to this Court’s decision in
Rapanos. The plurality in Rapanos established that
the “waters of the United States” may include non-
navigable wetlands only where the channel at issue is
“adjacent to a ‘water of the United States,’ (i.e. a rela-
tively permanent body of water connected to tradi-
tional interstate navigable waters)” and “the wetland
has a continuous surface connection with that water,
 3

making it difficult to determine where the ‘water’ ends

and the ‘wetland’ begins.” 547 U.S. at 742 (emphasis
added). That line-drawing problem is not implicated
here; several clearly identifiable waters separate Rob-
ertson’s ponds from the nearest navigable water. Un-
der the plurality definition of “waters of the United
States,” Robertson’s ponds are not “navigable waters.”
The court below erred when it applied Justice Ken-
nedy’s “nexus” test instead of the plurality rule. The
court simply assumed, that it could look to dissenting
opinions when applying the “reasoning-based” test
from Marks v. United States, 430 U.S. 188 (1977), to
find the reasoning “to which a majority of the Justices
would assent if forced to choose in almost all cases.”
Robertson, 875 F.3d at 1290. Lower courts have strug-
gled with whether the test includes dissents or only
concurrences combined with the majority. Yet when
dissents are used, a single justice’s reasoning can su-
persede a four-justice plurality. The “reasoning-based”
test was not designed to allow dissenting justices to be
weighted with concurring opinions to overthrow a plu-
rality, but rather to find the reasoning most shared—
the lowest common denominator, if you will—among
justices who supported the Court’s final judgment.
The circuits are split over whether to apply the plu-
rality test agreed upon by four justices, or Justice Ken-
nedy’s singular “nexus” test. The Rapanos plurality’s
definition of “waters of the United States” better pro-
tects state and federal jurisdiction over their respec-
tive waters, gives clearer definition to “waters of the
United States,” places the burden of proof on govern-
ment for restricting private water use, and will resolve
the circuit split in favor of accountable legislative de-
liberation about the scope of the commerce power.
 4

ARGUMENT
I. THE CLEAN WATER ACT DOES NOT APPLY
TO NON-NAVIGABLE WATERS THAT DO
NOT ABUT INTERSTATE WATERS
A. The Commerce Clause Does Not Permit the
CWA to Reach Private Intrastate Waters
The interstate-commerce regulatory power extends
beyond actual interstate activity only when those ac-
tivities are economic, and when taken in the aggregate
would substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549 (1995).
The wetlands regulation as applied here does not
directly regulate “channels” or “instrumentalities of
commerce,” id. at 559, but regulates activity that may
indirectly affect channels or instrumentalities. Accord-
ingly, it is justifiable solely under Lopez’s third prong:
as regulation of activity that “substantially affects” in-
terstate commerce. Id. at 559–60. Yet, as United States
v. Morrison made clear, isolated local activity cannot
be aggregated under the substantial effects test unless
the activity is itself “economic” in nature. 529 U.S. 598,
610 (2000). The Court later expressly reiterated Mor-
rison’s statement that, under the “substantial effects”
test, “economic activity” forms the proper basis for ag-
gregation. See Gonzales v. Raich, 545 U.S. 1,25 (2005).
Indeed, the Raich Court upheld the Controlled Sub-
stances Act not only because the CSA “directly regu-
lates economic, commercial activity,” including the
“production, distribution, and consumption of com-
modities,” id. at 26, but because the CSA does so with
the intent to affect prices and distribution within a
larger market. Id. at 19 n.29 (noting that in Wickard
v. Filburn, Congress sought to “protect and stabilize”
 5

the “wheat market,” while Congress sought, under the

CSA, to eradicate the marijuana market).
Here, there is no “commercial” or “economic” nexus
between digging ditches to collect water and the regu-
lation of interstate waters in the sense articulated by
Morrison and Raich. Lopez directs our attention to
“the activity being regulated”—here, literally, the dig-
ging of ponds to collect water. See, e.g., Rancho Viejo
LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003)
(Roberts, J., dissental). Even if we assume arguendo
that collecting water is the “distribution” or “consump-
tion” of a commodity (since water can be bought and
sold), and that the use of water will “affect” the going
price for water nationally—multiplied across thou-
sands of cornfields, bogs, sand boxes, drainage ditches,
and maybe even bird feeders—no one can plausibly ar-
gue that the CWA is designed to regulate the price of
water trafficked on the interstate market. Indeed, any
such suggestion would raise serious concerns that the
CWA is premised on pretextual justifications that both
the majority and dissent in Raich suggested are imper-
missible. Raich, 545 U.S. at 25 n.34 (recognizing pos-
sibility of “‘evasive’ legislation” written “for the pur-
pose of targeting purely local activity” but denying the
CSA was such a statue); id. at 46 (O’Connor, J., dis-
senting) (warning of “evasive” legislative strategies in
which Congress regulates “comprehensively,” to re-
ceive deference under Raich, but does so “exclusively
for the sake of reaching intrastate activity”).
Finally, while the CWA prohibits the “discharging”
of “dredge and fill” into a navigable water, that prohi-
bition does not itself lengthen the statutory reach. Ra-
panos, 547 U.S. at 729 (denying CWA jurisdiction on
the “nexus” theory of eventual intermixing of particles
 6

and water from intrastate to interstate water).

CWA jurisdiction is bound by the Commerce
Clause, which may reach outside actual interstate
channels and instrumentalities of commerce only
when the regulated activity is economic. Digging re-
mote ponds far removed from navigable waters is not
an economic activity that can be properly regulated by
any statute that respects constitutional design.

B. CWA Jurisdiction Is Limited by the Textual

Requirements of “Navigable Waters” and
“Preserving the Rights of the States”
The Rapanos plurality held that “waters of the
United States” is a term of art that extends beyond the
traditional meaning of “navigable.” Id. at 730–31. But
the Court made two points in conjunction with this ob-
servation: First, “the qualifier ‘navigable’ is not devoid
of meaning.” Id. (quoting Solid Waste Agency v. United
States Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)
(“SWANCC”). Second, the CWA expressly contem-
plates the states’ having primary jurisdiction over at
least some of the water in the United States. Id.
In Rapanos, the Court did not find it necessary to
define “navigable.” But the term “navigable waters” is
not hopelessly ambiguous. This Court has long held
that “navigable waters” are those “used or are suscep-
tible of being used . . . as highways for commerce, over
which trade and travel are or may be conducted.” The
Daniel Ball, 77 U.S. (10 Wall.) 557 (1871). The term’s
plain meaning cannot generally support jurisdiction
over water that is so far removed from trade or travel.
As Ex parte Boyer, 109 U.S. 629 (1884), held, the “wa-
ter of the United States” is that which encompasses
“navigable water” used “for commerce between ports
 7

and places of different States.” Id. at 632.

For regulatory purposes, “waters of the United
States” is a term of art that is broader than the plain
meaning of the term. Rapanos, 547 U.S. at 730–31. Yet
even terms of art, when susceptible of multiple inter-
pretations, must be construed according to the mean-
ing that best accords with, and does not render super-
fluous, the plain text of the act itself. See, e.g., Com-
munity for Creative Non-Violence v. Reid, 490 U.S.
730, 741 (1989) (where the term “employee” is a term
of art susceptible of several interpretations under the
law of agency, the Court will choose the meaning most
“consistent with the text of the Act.”). Here, that rule
dictates that the term “the waters of the United
States” should not be construed to supplant or extin-
guish the textual term “navigable.” Nor should the def-
inite article and noun, “the waters,” be read out of the
statute in order to turn the phrase into just “water.”
The Court’s precedent only allows for some control
over waters that are non-navigable in the rare in-
stances that they abut navigable waters. Rapanos, 547
U.S. at 730–35; SWANCC, 531 U.S. at 172.
Nor should the term “waters of the United States”
be construed to extend beyond waters of the “United
States” nationally, into waters of the states, locally.
The text of the act acknowledges as a primary purpose
the preservation of state authority in two ways. First,
as noted above, the act contemplates the states having
jurisdiction over some of the “waters of the United
States,” taking control where it is more practical for
them to do so, such as wetlands that immediately abut
interstate waters. Rapanos, 547 U.S. at 731. Second,
the CWA explicitly states as a primary goal to “pre-
serve, and protect the primary responsibilities and
 8

rights of the States to prevent, reduce, and eliminate

pollution, to plan the development and use . . . of land
and water resources.” Id. at 723. If “waters of the
United States” is a term of art, and terms of art must
be construed to give full meaning to the text of the
CWA, then the term must be given a meaning that pre-
serves both the “rights of the States” and “navigable.”
To construe the term as extending CWA jurisdiction to
any water with a “hydrologic connection” is to destroy
the meaning of both intrastate waters and “navigable.”

C. The Nexus Test Is an Exception, Not a Gen-

eral Rule, for CWA Jurisdiction
The plurality in Rapanos was clear that the “signif-
icant nexus” test applied only in narrow circum-
stances. Id. at 727. The Court clarified it would look
only to the “significant nexus” between a navigable
and non-navigable water when the geographic bound-
ary between waters presented line-drawing difficul-
ties. Id. at 739.
The “nexus test” originated in United States v. Riv-
erside Bayview Homes, Inc., 474, U.S. 121 (1985).
There, the Corps claimed CWA jurisdiction extended
to private waters that immediately abutted tradition-
ally navigable interstate waters. The Court upheld the
inclusive jurisdiction. Id. at 135. However, it clarified
that non-navigable intrastate waters that did not abut
a navigable waterway were not included as “waters of
the United States.” SWANCC, 531 U.S. at 172 (inter-
nal citations omitted). Thus, the “nexus” test was only
a narrow exception used when line-drawing between
interstate and intrastate waters is difficult.
When the line is easy to draw, as here, the plurality
offered a more general test for determining when the
 9

CWA covers non-navigable waters. First, the water at

issue had to be connected to an interstate, tradition-
ally navigable water; second, the water must have a
continuous surface connection with that navigable wa-
ter, “making it difficult to determine where the ‘water’
ends and the ‘wetland’ begins.” Rapanos, 547 U.S. at
743. Mr. Robertson’s rivulet empties into purely local
and state waters and is miles from the nearest named
interstate water, the Jefferson River. There is no diffi-
culty in determining where Robertson’s water ends
and the interstate water begins—the two do not even
touch, in any geographically reasonable sense.
Moreover, the plurality’s general test alleviates
several problems raised by the nexus test. The nexus
test, if used as a general rule rather than a line-draw-
ing exception, has no limit. As noted above, both the
text of the CWA and Commerce Clause require some
limit on federal power—that is, some delineation be-
tween all water in the country and “navigable waters”
of the United States. The nexus test can draw no help-
ful limits between these terms. The Court noted under
the Corps’ increasingly expansive interpretations “the
most insubstantial hydrologic connection may be held
to constitute a ‘significant nexus.’” Id. at 729. Such an
expansive test “stretched the term ‘waters of the
United States’ beyond parody,” id. at 734, and would
“result in a significant impingement of the States’ tra-
ditional and primary power over land and water use.”
Id. at 738 (quoting SWANCC, 531 U.S. at 174).
The plurality test, in contrast, protects states’ abil-
ity to control and police their own land and water re-
sources. The Court expressed confidence that the
states were adequate to the task of water management
and preservation. Id. at 745. If the Court made the
 10

nexus test the rule, it would bring “virtually all plan-

ning of the development and use of land and water re-
sources by the States under federal control.” Id. at 737.

II. DIVERGENT TREATMENT OF RAPANOS

SHOWS WHY THIS COURT MUST CLARIFY
THAT, WHEN APPLYING PRECEDENT
WHERE THERE IS NO MAJORITY OPINION,
COURTS SHOULD CONSIDER ONLY
PLURALITY AND CONCURRING OPINIONS
The Court’s current governing instruction for how
to apply precedent with no majority opinion, taken
from Marks v. United States, 430 U.S. 188 (1977), has
become known as the “reasoning-based” test. “When a
fragmented Court decides a case and no single ra-
tionale explaining the result enjoys the assent of five
Justices, the ‘holding of the Court may be viewed as
that position taken by those Members who concurred
in the judgment on the narrowest grounds.’” Id. at 194
(quoting Gregg v. Georgia, 428 U.S. 153 (1976)) (em-
phasis added). While the rule seems simple—look at
the area of overlap among justices who voted for the
bottom-line result—the Court never clarified what
“narrowest grounds” meant and so opened up room for
judicial confusion. To wit, what if the reasoning of the
concurrences overlaps to a greater extent with that of
the dissents? As a result, dissents have been given
comparable weight to concurrences, creating a rule
that defies the concept of majority voting. It has al-
lowed a single justice’s test to defeat a four-justice test
based on a hypothetical guess as to which of the two
all the justices might prefer if forced to choose.
In truth, the Marks rule can only be understood in
the context of that decision’s split. The Court used as
 11

its illustrative example a case in which three justices

joined in a controlling opinion and two justices con-
curred. Marks, 430 U.S. at 194. The three justices in
the plurality articulated a narrower view than the two
concurrences, so the Court held that on the “narrowest
grounds” (not by sheer numbers), the three justices’
reasoning controlled. Id. The Court said nothing of the
opinions of the dissenting justices, however, and it cer-
tainly did not—as the lower court attempts here—
compare two or three-justice reasonings with dissent-
ing opinions to see if there was overlap or common
ground by which to weigh controlling opinions.
There is a split in the lower courts over how to ap-
ply Marks to Rapanos, particularly over whether Jus-
tice Kennedy’s nexus test should prevail over the four-
justice plurality. The Seventh and Eleventh Circuits
have found Justice Kennedy’s opinion to be controlling
because it reined in government power less than the
plurality. United States v. Gerke Excavating, Inc., 464
F.3d 723 (7th Cir. 2006); United States v. Robinson,
505 F.3d 1208 (11th Cir. 2007). The First, Third, and
Eighth Circuits have held that CWA jurisdiction ex-
tends under either the plurality test or Justice Ken-
nedy’s, which is unhelpful for defendants wondering if
they will receive the plurality’s higher standard of pro-
tection. United States v. Johnson, 467 F.3d 56, 64–66
(1st Cir. 2006); United States v. Donovan, 661 F.3d 174
(3d Cir. 2011); United States v. Bailey, 571 F.3d 791,
799 (8th Cir. 2009). The Fourth Circuit has used the
nexus test without deciding whether it actually con-
trols. Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,
633 F.3d 278 (4th Cir. 2011). The Sixth Circuit also has
not explicitly chosen one test over the other. United
States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009).
Nor has the Fifth Circuit. United States v. Lucas, 516
 12

F.3d 316 (5th Cir. 2008). The Ninth Circuit below, at-
tempting to interpret Marks, assumed without decid-
ing that it could look to dissenting opinions to deter-
mine what the “narrowest grounds” for concurring
opinion’s might be. United States v. Robertson, 875
F.3d 1281, 1290 (2017).
By considering the dissenting opinions in Rapanos
to determine the holding of that case, the lower courts
have imposed an extra, or different, requirement than
did Marks. Some lower courts do not look merely to the
concurring opinions to find the narrowest grounds but
engage in guesswork as to what all the justices might
have ruled. The Ninth Circuit explicitly acknowledged
that it was engaged in this hypothetical reasoning,
stating, “we held that Justice Kennedy’s opinion was
the controlling opinion . . . because it is ‘the narrowest
grounds to which a majority of the justices would as-
sent if forced to choose in almost all cases.’” Robertson,
875 F.3d at 1289 (emphasis added).
But nowhere in Marks did the Court indicate that
lower courts should guess at what justices might rule.
Nor did it say that lower courts were to consider dis-
sents. The only opinions mentioned are concur-
rences—those concurring with the plurality, not any
overlap that might occur with the dissents.
The Court should thus use this case as a vehicle for
clarifying that, in cases where there is no agreement
on the reasoning behind a particular judgment, the
rule is the ground on which the concurring opinion and
pluralities agree—or that there is simply no rule at all.
 13

CONCLUSION
For these reasons, and those stated by the Peti-
tioner, the Court should grant the petition.
Respectfully submitted,
Ilya Shapiro
Counsel of Record
Trevor Burrus
Michael Finch
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
December 6, 2018 ishapiro@cato.org